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DEFENDANT DID NOT DENY ALLEGATIONS IN THE COMPLAINT WHICH ALLEGED GENERAL JURISDICTION OVER THE DEFENDANT, THEREFORE JURISDICTION WAS CONFERRED ON THE COURT, THE MECHANICS OF SUCCESSFULLY DENYING JURISDICTION EXPLAINED (FIRST DEPT).

The First Department determined defendant’s motion to dismiss the complaint based upon a lack of personal jurisdiction was properly denied because the defense was waived when defendant did not specifically deny an allegation of general jurisdiction made in the complaint. The court explained the mechanics of denying jurisdiction:

… [T]he defendant argues that it asserted a defense of lack of personal jurisdiction in its answer, and thus preserved the issue for adjudication in its present motion.

Personal jurisdiction is not an element of a claim, and matters that are not elements need not be pleaded in the complaint …. Where the plaintiff has not alleged facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant must assert lack of personal jurisdiction as an affirmative defense in order to give plaintiff notice that it is contesting it (see CPLR 3018). Where the plaintiff elects to allege facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant’s denial of those allegations may be sufficient to preserve defendant’s jurisdictional defense … . …

The specific allegations of plaintiff’s complaint … track, almost verbatim, the language of personal jurisdiction in CPLR 302, which provides the bases for specific jurisdiction. Defendant’s denial of these allegations is sufficient to provide notice to plaintiff that it is contesting specific jurisdiction.

The allegations of plaintiff’s complaint paragraphs 83 and 84 purport to establish a basis for general jurisdiction. They were not denied by defendant, rather defendant admitted them to the extent that it “is a duly organized foreign corporation doing business in New York . . .” This answer, interposed in 2004, before the Supreme Court’s ruling in Daimler AG v Bauman, 571 US 117 (2014), would have provided a basis for general jurisdiction. It, therefore, does not qualify as a specific denial that would have put plaintiff on notice that the defendant is contesting general jurisdiction. Defendant’s failure to clearly provide an objection to general jurisdiction in its answer waived the defense and conferred jurisdiction upon the court … . Matter of New York City Asbestos Litig., 2019 NY Slip Op 04777, First Dept 6-13-19

 

MOTION TO DISQUALIFY COUNSEL SHOULD HAVE BEEN GRANTED BECAUSE OF THE APPEARANCE OF A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to disqualify plaintiff’s attorney should have been granted:

Plaintiff’s counsel represented defendant at the time that he commenced this action against defendant on plaintiff’s behalf. Thus, the conflict of interest arose at that time and must be assessed as of that time (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1] …).

Although the matter in which plaintiff’s counsel represented defendant is unrelated to the instant matter, we find that counsel should be disqualified because “an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . City & County Paving Corp. v Titan Concrete, Inc., 2019 NY Slip Op 04776, First Dept 6-13-19

 

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PAIN MANAGEMENT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE/WRONGFUL DEATH CASE PROPERLY DENIED, THE DOCTOR PRESCRIBED OPIOIDS FOR PLAINTIFF’S DECEDENT, A DRUG ADDICT (FIRST DEPT).

The First Department determined defendant pain-management doctor’s (Kiri’s) motion for summary judgment in this medical malpractice case was properly denied. Kiri allegedly continued to prescribe high-dosage opioids to plaintiff’s decedent knowing that she was an addict. Plaintiff’s decedent died of a drug overdose. Although plaintiff’s decedent used illicit drugs as well, there was a question of fact about the proximate cause of death and whether the death was a foreseeable consequence of prescribing opioids:

Plaintiff’s theory of liability is that Dr. Kiri’s prescription of high-dose opioid pain killers for more than a year, despite the fact that her medical records showed drug use and drug seeking behavior, escalated, enhanced, or encouraged that behavior. An accidental overdose is not an unforeseeable result of prescribing, or over-prescribing, opioid painkillers to a patient who displays signs of addiction … . More specifically, here, decedent’s procurement and use of illicit drugs were not unforeseeable in light of the indicia of addiction or misuse noted in her medical records. Because decedent’s use of illicit drugs was not unforeseeable, her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. Halloran v Kiri, 2019 NY Slip Op 04769, First Dept 6-13-19

 

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NOTE: THIS CASE WAS REVERSED BY THE US SUPREME COURT ON JANUARY 20, 2022, BASED UPON A VIOLATION OF THE CONFRONTATION CLAUSE; IN AN EXHAUSTIVE DECISION WHICH DISCUSSED ONLY THE CONVOLUTED FACTS OF THIS MURDER CASE, THE MAJORITY AFFIRMED THE CONVICTION, OVER A DISSENT WHICH CALLED INTO QUESTION THE IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER (FIRST DEPT).

The First Department, in an extensive, detailed, exhaustive rendition of the convoluted facts in this murder case, over a dissent, affirmed defendant’s conviction, finding the evidence legally sufficient. The victim was a two-year-old child in a van who was struck by a stray bullet. Major issues were whether the accomplice testimony was sufficiently corroborated and whether the jury was made aware that one of the eyewitnesses had identified a person other than the defendant, Morris, as the shooter. Morris was initially charged with the murder and went to trial which ended in a mistrial. He then pled guilty, against his attorney’s advice, to an apparently unrelated possession of a weapon charge. The shooting took place in 2006. Defendant was arrested and indicted in 2013 and went to trial in 2015. The majority appeared to rely heavily on evidence of consciousness of guilt (the defendant gave up a business in New York and fled to North Carolina). People v Hemphill, 2019 NY Slip Op 04646, First Dept 6-11-19

In an important opinion from the United States Supreme Court released January 20, 2022, and revised January 21, 2022, Hemphill’s conviction was reversed on the ground his right to confront Morris, who was not available to testify, had been violated by allowing the Morris’s plea allocution to be introduced in evidence. The stray bullet came from a 9mm weapon. The defense argued Morris was the shooter. After Morris’s murder trial ended in a mistrial, Morris pled guilty to possession of a .357 revolver. The plea allocution was allowed in evidence to “correct” the defense’s “misleading” argument that Morris was the shooter. Hemphill’s conviction was affirmed by the New York State Court of Appeals, over a dissent by Judge Fahey. People v Hemphill, 2020 NY Slip Op 03567, 35 NY3d 1035 CtApp 6-20-20

The violation of the Confrontation Clause warranted reversal by the US Supreme Court. 1/20/22 20-637 Hemphill v. New York

 

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THE FEDERAL FAIR HOUSING AMENDMENTS ACT AND THE NEW YORK CITY HOUSING AUTHORITY’S RULES REQUIRED THAT THE HEARING OFFICER CONSIDER PETITIONER-TENANT’S ACCOMMODATION REQUEST TO KEEP AN EMOTIONAL SUPPORT DOG IN HIS APARTMENT, THE HEARING OFFICER HAD RULED THE DOG WAS VICIOUS AND MUST BE REMOVED WITHOUT CONSIDERING THE ACCOMMODATION REQUEST, THE MATTER WAS SENT BACK (FIRST DEPT).

The First Department sent the matter back for a determination by the New York City Housing Authority (NYCHA) of petitioner’s accommodation request to keep an emotional support dog in his apartment. The dog had apparently bitten a NYCHA employee and the NYCHA alleged the presence of “vicious” dog violated the lease. Before the hearing, petitioner, who suffers from schizophrenia, requested that he be permitted to register the dog, Onyx, as an emotional support dog. The Hearing Officer ruled that petitioner could not keep the dog, but did not reach the accommodation request:

Under the Fair Housing Amendments Act (FHAA), it is unlawful discrimination for a housing provider to “refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” (42 USC § 3604[f][3][B]). Federal regulations exempt “animals that assist, support, or provide service to persons with disabilities” from public housing authority pet rules (24 CFR § 960.705[a]). Accordingly, respondent is obligated by both federal law and its own rules to accommodate petitioner’s request to maintain his emotional support animal, Onyx, so long as petitioner meets his burden of showing that his dog assists him with aspects of his disability. …

Federal regulations provide that a housing provider can only invoke the direct threat exception after conducting an individualized and objective assessment of the relevant factors, including (1) the nature, duration, and severity of the risk; (2) the probability that the potential [*3]injury will actually occur; and (3) whether any reasonable accommodations will mitigate the risk (24 CFR § 9.131[c]). The “direct threat” analysis has been applied to cases in which a person with a disability is seeking to maintain an emotional support pet as a reasonable accommodation … . Matter of Washington v Olatoye, 2019 NY Slip Op 04644, First Dept 6-11-19

 

PLAINTIFF WAS INJURED USING A GRINDER WHICH DID NOT HAVE A SAFETY GUARD, THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed. Plaintiff was injured using a grinder that did not have a safety guard:

Industrial Code (12 NYCRR) § 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” applies to the instant action and is sufficiently specific to support a section 241(6) claim … . Here, plaintiff testified that he was given a hand-held grinder from which the safety guard had been removed by his employer to install an over-sized disc blade. Plaintiff was then instructed to use this grinder to cut concrete, over his objections, and was injured when the grinder got stuck, kicked back, knocked him to the ground, and cut into his foot. This testimony raises a triable issue of fact as to whether defendant breached its nondelegable duty “to provide reasonable and adequate protection and safety” to plaintiff … . Contreras v 3335 Decatur Ave. Corp., 2019 NY Slip Op 04663, First Dept 6-11-13

 

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PLAINTIFF, WHICH PUT UP ITS EQUITY INTERESTS IN 11 PROPERTIES TO SECURE A $71 MILLION LOAN FROM DEFENDANT, SUED TO DECLARE VOID THE UCC NONJUDICIAL SALE OF THE PROPERTIES BY DEFENDANT, THAT ASPECT OF THE SUIT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined defendant’s cause of action seeking to declare void the Uniform Commercial Code (UCC) sale of plaintiff’s property, which was put up as collateral for a loan made to plaintiff by defendant, should have been dismissed. Plaintiff, Atlas, put up its equity interest in 11 properties as collateral for a $71 million loan from defendant, Macquarie. Atlas and Macquarie were unable to agree on an extension of time for repayment of the loan. After a UCC nonjudicial sale held by Macquarie, at which Atlas submitted bids, another buyer outbid Atlas. Atlas sued to void the sale:

Article 9 of the Uniform Commercial Code (UCC) governs the enforcement of a creditor’s security interest. “The underlying purposes and policies of the [UCC] as a whole are to simplify, clarify, and modernize the law governing commercial transactions; to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and to make uniform the law among the various jurisdictions” … . Here, plaintiff … (Atlas), the debtor, is asking this Court to unwind a UCC sale of the equity interest in 11 commercial properties, which was collateral for Atlas’s $71 million mezzanine loan, borrowed from defendant … (Macquarie), the secured creditor. It is difficult to see how such an action would simplify the laws governing commercial transactions. Rather, if UCC sales could be unwound, it would only serve to muddy the waters surrounding nonjudicial sales conducted pursuant to article 9 of the UCC, and to deter potential buyers from bidding in nonjudicial sales, which would, in turn, harm the debtor and the secured party attempting to collect after a default. Moreover … Atlas’s argument does not have support in the plain reading of the UCC nor in existing case law. Atlas MF Mezzanine Borrower, LLC v Macquarie Tex. Loan Holder LLC, 2019 NY Slip Op 04495, First Dept 6-6-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​

The First Department, reversing Supreme Court, held that Supreme Court should not have, sua sponte, dismissed plaintiff’s complaint and vacated the default judgment as untimely, Plaintiff had timely moved for a default judgment. Although sua sponte orders are not appealable as of right, the First Department deemed the notice of appeal as a motion for leave to appeal:

An order issued sua sponte is not appealable as of right (see Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, given the nature of the motion court’s sua sponte relief in dismissing the complaint pursuant to CPLR 3215(c), we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (…CPLR 5701[c]).

The record is clear that plaintiff had moved for a default judgment within one year, and thus, the motion court’s sua sponte vacature of the judgment and dismissal of the complaint as untimely was in error … . In view of this decision, the merits of defendant’s motion to vacate the default judgment are no longer moot and it is remanded back to the trial court for consideration on the merits. New Globaltex Co., Ltd. v Zhe Lin, 2019 NY Slip Op 04456, First Dept 6-6-19

 

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INSUFFICIENT EVIDENCE OF NEGLECT AND DERIVATIVE NEGLECT FOR FAILURE TO PROVIDE ADEQUATE FOOD, CLOTHING AND SHELTER; EVIDENCE SUPPORTED EDUCATIONAL NEGLECT AND DERIVATIVE NEGLECT, DESPITE MOTHER’S HOME-SCHOOLING EFFORTS, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department reversed Family Court’s finding of neglect and derivative neglect for failure to provide adequate food, clothing and shelter, The evidence, i.e., the caseworker’s progress notes and the testimony of a police officer based upon a single visit, was deemed insufficient. However, the majority, over a two-justice dissent, found the evidence of educational neglect and derivative neglect sufficient. The older children were not attending school, but the college-educated mother was home-schooling them:

Although the mother’s living conditions were unsuitable, the record presents no basis for a conclusion that the children’s “physical, mental or emotional condition ha[d] been impaired or [wa]s in imminent danger of becoming impaired” as a result of their exposure to such environment (Family Court Act § 1012[f][i]). The officer’s testimony provided no information about the physical or mental condition of the children at the time of her visit, and petitioner did not introduce the results of the medical examination of the children conducted on the day when they were first removed from the home. …

The court found that the mother did not establish that she was qualified to teach, especially with respect to elementary-school-aged children. The mother admitted that she knew her educational plan was not approved by the Board of Education, yet, she never followed up with an approved individual home instruction plan as required by the Board of Education. The court found that the mother failed to show that her instruction was substantially equivalent to that in public school, and that the children were educated for at least as many hours as provided in public school … . The court further found that the mother’s use of college-level textbooks and testing the children using high school examination tests did not constitute appropriate education for elementary-school-aged children. We defer to these findings of the Family Court.  Matter of Puah B. (Autumn B.–Hemerd B.), 2019 NY Slip Op 04451, First Dept 6-6-19

 

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OUT-OF-POSSESSION LANDLORD COULD NOT HAVE FORESEEN THAT INFANT PLAINTIFF WOULD MOVE LOGS STACKED AT THE SIDE OF THE PROPERTY AND THEN FALL WHEN JUMPING FROM LOG TO LOG, INFANT PLAINTIFF CREATED THE DANGEROUS CONDITION AND ASSUMED THE RISK (FIRST DEPT). ​

The First Department determined the out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly granted. Infant plaintiff (Deandre) had moved some logs from the side of the property and was jumping from log to log when he fell:

Defendant testified that he had had the tree cut down and the logs stacked along a property fence line several years earlier and had never seen the logs anywhere else on the property. Deandre testified that he and his friends had arranged the logs in a line and were jumping from log to log when he fell. The record shows that no one had complained to defendant, an out-of-possession landlord, about the logs before the accident, and Deandre testified that he had been playing on them for about 10 minutes when he fell.

Plaintiffs contend that it was foreseeable that children would move the logs. However, absent evidence of earlier incidents involving the logs or any complaint made to defendant about the logs, the possibility of children playing with them does not render the presence of the logs in the backyard foreseeably dangerous … .

Plaintiffs also failed to raise an issue of fact as to whether Deandre could fully appreciate the risks of jumping onto logs. As Deandre himself created the danger by setting up and jumping on the logs while playing with his friends, plaintiffs cannot show that he was faced with a risk that was unassumed, S.-B. v Radincic, 2019 NY Slip Op 04324, First Dept 6-4-19

 

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